Family alleges Ohio execution unconstitutional

Attorneys Richard Schulte, left, and Jon Paul Rion speak during a news conference Friday, Jan. 17, 2014, in Dayton, Ohio, to announce a planned lawsuit against the state over the unusually slow execution of condemned killer Dennis McGuire. McGuire's lawyers had attempted last week to block his execution, arguing that the untried method could lead to a medical phenomenon known as ?air hunger? and could cause him to suffer "agony and terror" while struggling to catch his breath. (AP Photo/Kantele Franko)

COLUMBUS — The prolonged execution of an inmate during which he repeatedly gasped and snorted amounted to cruel and unusual punishment which should not be allowed to happen again, the inmate’s family stated in a federal lawsuit.
The lawsuit, filed late Friday, also alleges the drug maker that produced the medications illegally allowed them to be used for an execution and should be prohibited from making them available for capital punishment.
Dennis McGuire “repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain,” the lawsuit stated. “It looked and sounded as though he was suffocating.”
McGuire’s execution Jan. 16 lasted 26 minutes, the longest since the state resumed putting inmates to death in 1999, according to an Associated Press analysis of all 53 execution logs maintained by the Department of Rehabilitation and Correction.
It remains unclear what McGuire experienced. The AP observed him appearing to fall unconscious and remaining so while he snorted, gasped and opened and shut his mouth repeatedly.
McGuire’s execution, during which his adult children sobbed in dismay, has led to several calls for a moratorium on capital punishment in the state.
In addition, a separate federal lawsuit filed Thursday seeks to stop the March execution of a northeast Ohio killer on the grounds that condemned inmates could be clinically alive for as long as 45 minutes after a time of death is announced in the state death chamber.
Attorneys for Gregory Lott, who is scheduled to die March 19 for setting an East Cleveland man on fire in 1986 and leaving him to die, also say Ohio is breaking state and federal law by using the drugs without a prescription.
The lawsuit by McGuire’s family targets Lake Forest, Ill.-based Hospira Inc., the manufacturer of the drugs used in McGuire’s execution.
The company knew its drugs were being used for executions but continued to sell them to Ohio, according to the lawsuit, which seeks damages more than $75,000.
Hospira should have known the drugs “would cause unnecessary and extreme pain and suffering during the execution process,” the lawsuit stated.
In 2011, Hospira ended production of sodium thiopental, a drug used by many states for executions, including Ohio, after it couldn’t guarantee to Italian authorities where its factory was located that the drug wouldn’t be used for capital punishment.
The company also has prohibited other drugs from being used in executions, and will take the same steps for midazolam and hydromorphone, the drugs used in the McGuire execution, according to a company statement.
Medical experts wouldn’t comment on McGuire’s execution or speculate about what he experienced. They agreed that used for surgeries, the two drugs by themselves wouldn’t cause pain.
“They are actually used to prevent any pain or discomfort, in a surgical procedure or any other kind of procedure as well,” said Robert Weber, administrator for pharmacy services at the Ohio State University medical center.
The first drug, midazolam — sometimes known by its trade name Versed — is administered in surgery to help calm patients, said Dr. Howard Nearman, professor of anesthesiology at Case Western Reserve University. The second, hydromorphone, known by the trade name Dilaudid, is a strong narcotic meant to reduce pain.
“By virtue of what they do, they cause unconsciousness and they inhibit pain,” Nearman said.
An anesthesiologist hired by McGuire’s attorneys before his execution predicted the inmate would suffer “agony and terror” as he experienced a phenomenon known as air hunger, or the desperate attempt to catch his breath as he suffocated.
An anesthesiologist hired by the state disputed that scenario. That doctor, Mark Dershwitz of the University of Massachusetts, also said McGuire’s airways could become obstructed and he might snore as a result, though he would not suffer.
The obstruction of a patient’s airways can be a common reaction to sedation, especially if the patient is obese, said Dr. Andrew Casabianca, interim chair of the University of Toledo College of Medicine’s Department of Anesthesia.
“Their respiratory rate starts slowing down. Their heart rate may slow down. Their ventilation slows down,” he said.
The drugs weren’t designed to cause death, Jon Paul Rion, the McGuire family attorney, told the AP Friday.
“There’s a clear distinction between a therapeutic use of a drug in a medical environment as opposed to using that drug in an execution style,” he said.
“That’s the concern, that we’re taking drugs that have therapeutic value and we’re not using them for the purposes for which the FDA approved nor for which the clinical tests were performed,” he said.